Amendment 1 — Central Hudson Test And Current Doctrine

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court established the standard that generally governs government restrictions on commercial speech in 1980’s Central Hudson Gas & Electric Corp. v. Public Service Commission.[1](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn1amd1 " 447 U.S. 557, 566 (1980). ") In that case, the Court explained that commercial speech enjoys “lesser protection” than “other constitutionally guaranteed expression.” [2](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn2amd1 " Id. at 563. Commercial speech is viewed by the Court as usually hardier than other speech; because advertising is the sine qua non of commercial profits, it is less likely to be chilled by regulation. Thus, the difference inheres in both the nature of the speech and the nature of the governmental interest. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771–72 n.24 (1976); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455–56 (1978). ") After emphasizing that First Amendment protection for commercial speech “is based on the informational function of advertising, ” the Court said that “there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity.” [3](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn3amd1 " Cent. Hudson, 447 U.S. at 563. ") Accordingly, the Court held that the government may prohibit “forms of communication more likely to deceive the public than to inform it” as well as “commercial speech related to illegal activity.” [4](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn4amd1 " Id. at 563–64. ") But if the regulated “communication is neither misleading nor related to unlawful activity,” the government’s action is subject to intermediate scrutiny.[5](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn5amd1 " Id. at 564. ") Under Central Hudson's intermediate standard, the government must prove that its interest is “substantial,” and that the regulation “directly advances” that interest and is “not more extensive than is necessary to serve that interest.” [6](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn6amd1 " Id. at 566. ") In Central Hudson, the Court ruled a state regulation banning promotional advertising by electric utilities unconstitutional.[7](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn7amd1 " Id. at 568, 572. ") Although the Court recognized the state’s alleged interests in energy conservation and equitable pricing as substantial, it concluded the total ban was not sufficiently narrowly tailored to the government’s interest.[8](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn8amd1 " Id. at 568–71. ") The Court stressed that the state regulation extended to “all promotional advertising, regardless of the impact of the touted service on overall energy use” —including barring advertisements of more energy efficient products.[9](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn9amd1 " Id. at 570. ")

The Court has since described Central Hudson as setting out a four-pronged test for restraints upon commercial expression.[10](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn10amd1 " In one case, the Court referred to the test as having three prongs, referring to its second, third, and fourth prongs, as, respectively, its first, second, and third. The Court in that case did, however, apply Central Hudson's first prong as well. Fl. Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995). ") The test applies to commercial speech, which the Court has defined alternately as speech that “does ‘no more than propose a commercial transaction’” [11](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn11amd1 " Va. State Bd. of Pharm., 425 U.S. at 762 (quoting Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels., 413 U.S. 376, 385 (1973)). ") and as “expression related solely to the economic interests of the speaker and its audience.” [12](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn12amd1 " Cent. Hudson, 447 U.S. at 561. The Court has viewed as noncommercial the advertising of views on public policy that would inhere to the economic benefit of the speaker. Consolidated Edison Co. v. PSC, 447 U.S. 530 (1980). See also, e.g., Harris v. Quinn, 573 U.S. 616, 648 (2014) (holding that union speech on matters of public concern did “much more than” propose a commercial transaction). So too, the Court has refused to treat as commercial speech charitable solicitation undertaken by professional fundraisers, characterizing the commercial component as “inextricably intertwined with otherwise fully protected speech.” Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 796 (1988). By contrast, a mixing of home economics information with a sales pitch at a Tupperware party did not remove the transaction from commercial speech. Bd. of Trs. v. Fox, 492 U.S. 469 (1989). The mere linking of a product to matters of public debate does not thereby entitle an ad to the increased protection afforded noncommercial speech. Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983). ") The Court has also distinguished laws that regulate the conduct of sellers—an “area traditionally subject to government regulation” —from those that regulate a seller’s speech.[13](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn13amd1 " Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978). In Ohralik, the Court said it could cite “[n]umerous examples . . . of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, corporate proxy statements, the exchange of price and production information among competitors, and employers’ threats of retaliation for the labor activities of employees.” Id. at 456 (citations omitted). ") In Expressions Hair Design v. Schneiderman, the Court held that a New York State statute that prohibited businesses from displaying a cash price alongside a surcharge for credit card purchases burdened speech.[14](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn14amd1 " 581 U.S. 37 (2017). ") Relying on Supreme Court precedent suggesting that “price regulation alone regulates conduct, not speech,” the lower court held that the statute was constitutional.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn15amd1 " Id. at 5. ") The Supreme Court disagreed, stating “[w]hat the law does regulate is how sellers may communicate their prices,” and “[i]n regulating the communication of prices rather than prices themselves, [the statute] regulates speech.” [16](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn16amd1 " Id. at 9–10. ") The Court, however, remanded the case to the lower court to determine in the first instance whether the law survives First Amendment scrutiny.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn17amd1 " Id. at 1. ")

Under the first prong of the test, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if an advertisement does not accurately inform the public about lawful activity, it can be suppressed.[18](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn18amd1 " Cent. Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557, 563, 564 (1980). Within this category fall the cases involving the possibility of deception through such devices as use of trade names, Friedman v. Rogers, 440 U.S. 1 (1979), and solicitation of business by lawyers, Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978), as well as the proposal of an unlawful transaction, Pittsburgh Press Co. v. Comm’n on Hum. Rels., 413 U.S. 376 (1973). ") Accordingly, a statute prohibiting the practice of optometry under a trade name was sustained because there was “a significant possibility” that the public might be misled through deceptive use of the same or similar trade names.[19](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn19amd1 " Friedman v. Rogers, 440 U.S. 1 (1979). ") Second, if the speech is protected, the interest of the government in regulating and limiting it must be assessed. The state must assert a substantial interest to be achieved by restrictions on commercial speech.[20](https://www.law.cornell.edu/constitution-conan/amendment-1/central-hudson-test-and-current-doctrine#fn20amd1 " Cent. Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557, 564, 568–69 (1980). See also San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522 (1987) (governmental interest in protecting USOC’s exclusive use of word “Olympic” is substantial); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (government’s interest in curbing strength wars among brewers is substantial, but interest in facilitating state regulation of alcohol is not substantial). Contrast United States v. Edge Broad. Co., 509 U.S. 418 (1993), finding a substantial federal interest in facilitating state re